6 STATUS CONFERENCE Uhuru at ICC: Damned if he goes, damned if he doesn’t The judges had ≥ejected his ≥equest to skip the confe≥ence and a suggestion fo≥ adjou≥nment to a late≥ date By FRED OLUOCH Special Correspondent to The Hague for the International Criminal Court Status Conference in a development that has presented him with a major dilemma. People close to the presi- P dency said the decision to attend the conference, in a case in which he is charged with crimes against humanity in relation to the post-election violence of 2007/2008, was informed by the tribulations resident Uhuru Kenyatta is this week set to travel facing the Sudanese President Omar al-Bashir against whom a warrant of arrest has been issued. Legal experts note that President Kenyatta’s decision to attend the ICC Status Conference on October 8 is likely to provoke a review of the relationship between the Court and the African Union that had advised against the move and threatened non-cooperation. According to John Waigan- jo, a lawyer and Member of Parliament for Ol-Kalou, President Kenyatta’s attend- President Uhuru Kenyatta and First Lady Margaret arrive at the International Criminal Court at The Hague in a past Court appearance. Picture: File ance flies in the face of the AU summit resolution of last October, but more so, was the realisation that the challenge was personal and not even his peers could help in case the Court issued a warrant of arrest. This may be particularly relevant because of the fact that President Kenyatta is currently under obligation to attend court at the ICC whenever the judges require him to. The condition was set by the judges of the Pre-Trial Chamber and preceded his election as president and the AU’s resolution. The situation presents the dilemma of either ignoring the AU resolution and attending court, in which case, political analysts argue, the president would have subjected himself to the humiliation of sitting in the dock of a supposedly foreign court, or declining to attend and risking a warrant of arrest being issued, with the attendant embarrassment such action would invite on the president and country. “President Kenyatta is like- INVITATION TO TENDER Kenya Institute of Bankers Strategic Capacity Assessment The Kenya Institute of Bankers (KIB) jointly with FSD Africa (FSDA), wish to identify and contract a consultancy firm to carry out a strategic capacity assessment of the institute and its training programmes in banking and financial services. KIB is a membership-based organization made up of corporate and individual members. It currently has 47 banks as corporate members with their employees as individual members. Some of the member and nonmember banks have over 288 branches in the East African Community, South Sudan and the rest of Africa. KIB has a governing Council represented by corporate members from the banking and Finance Sector. FSDA, a financial sector deepening trust, aims to support financial sector development across the African continent by encouraging skills development, transfer of knowledge (e.g. research, business models, policy approaches etc.) across borders, and by building the capacity of financial systems in other ways. Supporting the development of well-functioning credit markets development is a priority for FSDA. The primary purpose of the consultancy is to: • Carry out an institutional capacity assessment in light of KIB’s institutional re-engineering and skills demand from financial services industry. This should include identification of areas of vulnerability and specific recommendations on how these can be solved; • Consider KIB’s future role, proposing an imaginative vision for the institution that is both consistent with its current mandate and realistic in light of the resources that are likely to be available to it within reasonable expectations; • Make recommendations of how KIB could strengthen capacity to meet its current and future needs; and • Propose a road map for the capacity strengthening process including monitoring indicators. Your proposal should contain: • Names and CVs (maximum 3 sides of A4 paper each) of lead consultant (s) including qualifications and relevant experience in providing the kind of assessment required and an outline of team structure. • A summary of your/your firm’s experience in providing the kind of analysis called for in the terms of reference. • A description of your understanding of the role of the Consultants as outlined in the terms of reference. • A description of how you/your firm intend to fulfil the Services within the suggested timeline. • A financial proposal-an estimated budget for both professional fees and reimbursable expenses. Your proposal which should not exceed 10 sides of A4 (font size 11), excluding CVs, company brochures etc. should be sent to info@fsdafrica.org under a subject line reading ‘Invitation to tender: KIB strategic capacity assessment”. Detailed terms of reference can be obtained from FSD Africa’s website www.fsdafrica.org/opportunities Proposals must be received by FSD Africa no later than 1200 (EAT), Friday 24th October, 2014. ly to earn respect by showing that even though he is the president, he is first a citizen of the world who respects the rule of law. His attendance will be a win for ICC because the court will be seen as having the power to summon, while it also sends a message to other African leaders that they will be forced to attend should they find themselves in a similar situation,” said Mr Waiganjo. The ICC judges had earlier in the week rejected President Kenyatta’s request to skip the conference and a suggestion for adjournment to a later date, and to allow him to attend through a video link, and ruled that the president must be present in person. The president had said he needed to participate in the Northern Corridor meeting in Kampala on October 8 and Uganda’s Independence Day celebrations the next day. At an extraordinary session of the AU Assembly last October, African leaders — who have been complaining that ICC is targeting Africans — passed a resolution that sitting African heads of state should not appear before any international court while in office. Specifically, they resolved that, “President Uhuru Kenyatta will not appear before the ICC until such time as the concerns raised by the AU and its member states have been adequately addressed by the UN Security Council and LIKELY SCENARIO The ICC judges will be “calibrating” several issues in deciding whether to dismiss the charges or allow the prosecution to continue. The Court could also order the case be terminated due to insufficient evidence. President Kenyatta will not be questioned by ICC Prosecutor Fatou Bensouda. The judges will instead hear arguments from both defence and prosecution attorneys regarding next steps in the case. the ICC.” Subsequently, Kenya on behalf of the AU, had proposed an amendment to the Rome Statute to introduce such immunity for sitting heads of state that was to be put before the ICC Assembly of State Parties (ASP). The African leaders later in July this year adopted a new protocol adding jurisdiction over international crimes to the mandate of the African Court of Justice and Human Rights during the AU Summit in Malabo, Equatorial Guinea. But they added a provision that incumbent leaders and senior government officials suspected of committing genocide, war crimes and crimes against humanity would not be charged or tried by the Union’s Court of Justice and Human Rights, based in Arusha Tanzania. However, Elizabeth Even- son, a senior counsel in the International Justice Programme, maintained that the ICC treaty made it clear that there was no immunity from prosecution for sitting heads of state and that the AU resolution struck at the very heart of the ICC, which stood for holding to account those who committed the world’s worst crimes, regardless of rank or position. Ms Evenson also focuses on the ICC’s investigations of the 2007-2008 post-election violence in Kenya and advocates for domestic prosecution of serious crimes in Kenya. The EastAfrican NEWS OCTOBER 4-10,2014 Dutch govt to p≥ovide secu≥ity THE EMBASSY of the Netherlands in Nairobi, says that President Uhuru Kenyatta’s visit to The Hague to attend the Status Conference would be treated as that of any other head of state on a private visit to an intergovernmental organisation. According to Stijn Janssen, the first secretary political at the embassy, the Netherlands government acting as the host state under the Rome Statute, facilitates the work of the International Criminal Court with regard to all the cases, including the Kenyan ones. “His visit to the Nether- lands will be treated as a private visit of a head of state to an intergovernmental organisation. H.E. President Kenyatta would be received as any other head of state on a private visit to the Netherlands. In this regard, a state reception is not foreseen,” said Mr Janssen in a statement. President Kenyatta is how- ever expected to be provided with security, but will attend court as an ordinary suspect. The ICC Public Affairs Unit told The EastAfrican that during court proceedings before (ICC) judges, President Kenyatta shall be accorded the same respectful treatment as other ICC accused, who are guaranteed fair and impartial proceedings. The unit further noted that the ICC security, in conjunction with the Dutch authorities when necessary, ensure the safety and security of all persons appearing before the Court as well as all personalities visiting the ICC premises. However, the unit main- tained that matters of President Kenyatta’s presence the Netherlands, is outside of the Court proceedings, are arranged between the Kenyan and Dutch authorities. Fred Oluoch The International Criminal Court at The Hague. Pic: File